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[42] I will address the issue of standing first. Although this was an alternative route to the trial judge’s conclusion, there appears to be some conflict in the decisions in the trial court that should be resolved, if possible.
[43] A person is granted standing to challenge a search and seizure in a criminal case when they have a reasonable expectation of privacy. The factual matrix is all-important when assessing a reasonable expectation of privacy. Here, Mr. Vickerson challenges the search of Mr. Schnarr, and the seizure of drugs, text messages and call logs pursuant to that search.
[46] In R. v. Craig, 2016 BCCA 154 (CanLII), this Court examined standing, and the framework established in Edwards, R. v. Tessling, 2004 SCC 67 (CanLII) and R. v. Patrick, 2009 SCC 17 (CanLII), in terms of how to approach whether someone has standing based on a reasonable expectation of privacy. In Tessling and Patrick, the Court modified the framework to fit the factual matrix in those cases. In my view, the Edwards framework does not need modification for the facts in this case, which are straightforward. In Craig, the Court set out the standing test as follows:
[65] Justice Cory, writing for the majority, held that the assessment of whether a person has a reasonable expectation of privacy is considered in all of the circumstances of the case (para. 31). He continued, however, and added that the conduct of the police in conducting the search is not relevant to the inquiry in relation to the reasonable expectation of privacy (para. 33).
[66] He affirmed the principle found in Alderman v. United States, 394 U.S. 165 at pp. 171-172 (1969), that:
. . . [the] suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. [Emphasis added.]
[67] The Court also affirmed that a reasonable expectation of privacy can exist, even when it shelters illegal activity (para. 43). Cory J. summarized non-exhaustive factors pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure, at para. 45:
1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey,1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.
2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, 1992 CanLII 2781 (ON CA), [1992] O.J. No. 450 supra.
4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[47] Here, Mr. Vickerson was not present when Mr. Schnarr’s vehicle was stopped and searched, he was not in possession or control of the property (the vehicle), he had no ownership in the property, there was no evidence that Mr. Vickerson had any attachment to the property at all, and Mr. Vickerson did not testify on the voir dire. Therefore, there was no direct or indirect evidence of any subjective expectation of privacy. In short, there is nothing to support that Mr. Vickerson had a reasonable expectation of privacy with respect to the search of the vehicle, the arrest and search of Mr. Schnarr, or the seizure of the drugs and the mobile phone. Clearly, the trial judge was correct in concluding that Mr. Vickerson had no standing to challenge the search and seizure in relation to Mr. Schnarr, apart from the contents of the mobile phone.
[48] Mr. Vickerson argues that he should have been able to challenge all aspects of the searches on a voir dire because he had “partial standing” based on the search of Mr. Schnarr’s mobile phone. Either one has standing or not. The standing analysis is founded on a reasonable expectation of privacy in the thing searched or seized. Standing to challenge the contents of a mobile phone does not translate into standing to challenge searches or seizures where there is no expectation of privacy.
[49] I wish to address briefly the Todd and Brown decisions. In Todd, Rogers J. applied the test found in Edwards, which is, as noted above, the correct approach to assessing whether there is standing to challenge a s. 8 Charter violation. In Brown[1], Funt J. conducted an analysis of the statutory meaning of “reasonable grounds” in coming to his conclusion that co-accused Manuel and Lambrecht had standing to challenge a violation of Brown’s rights. Suffice it to say that the analysis performed in that case should be restricted to that case. The Edwards framework, subsequently modified in Tessling and Patrick, is the appropriate context to determine if a person has standing to challenge a Charter violation.
[50] I turn now to the search of the mobile phone and the discovery of the text messages. The trial judge concluded, based on Pelucco, that Mr. Vickerson had a reasonable expectation of privacy in the text messages and call logs, and thus, they should be excluded from the ITO. The Crown, on appeal, submits that the trial judge erred in that conclusion by misapplying Pelucco. I agree.
[53] The holding in Pelucco is narrower than the general proposition that the trial judge describes. Mr. Justice Groberman, for the majority, explains that “a sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient”: at para. 68 (emphasis added).
[54] However, Groberman J.A. continues, noting that whether a sender of a text message has a reasonable expectation of privacy in a received message depends on the totality of the circumstances, which is a test of substance rather than form, to be determined under the framework established in Edwards and elaborated upon in R. v. Cole, 2012 SCC 53 (CanLII): Pelucco at paras. 35-36. Accordingly, Pelucco does not stand for the proposition that the sender of a text message always has a reasonable expectation of privacy in that text message as stored on its recipient’s mobile phone.
[55] This conclusion was also reached in Marakah at para. 4, where McLachlin C.J.C. held, for the majority, that “depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8…”.
[56] Secondly, the majority holding in Pelucco is expressly inapplicable to situations of a lawful search. At para. 49, Groberman J.A. notes:
[49] … A person cannot have a reasonable expectation that messages on another person’s cellphone will remain private in the face of a lawful search of the device.
[Emphasis added.]
[57] The trial judge in this case determined that Mr. Schnarr’s arrest was lawful, however, he did not consider whether the search of the mobile phone was a lawful search incidental to arrest. He drew a direct line from a reasonable expectation of privacy to a breach of s. 8.
[58] In Marakah, the majority concluded that the warrantless search of Mr. Winchester’s (the third party) mobile phone two hours after his arrest was not a search incidental to arrest and was thus in breach of s. 8, a fact conceded by the Crown. Mr. Marakah had standing to challenge that search. The majority excluded the evidence of the “electronic conversations” pursuant to s. 24(2) of the Charter.
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